The Applicant sought access to information: two COPS event records and a DVD record of interview. NSW Police initially provided access to one COPS event record in full, and one in part, and refused to release the DVD. NSW Police made a supplementary decision, releasing the second COPS record and refusing to release the DVD. The Tribunal, in hearing the matter, decided to release the DVD.

NSW Police appealed on the basis that the Tribunal erred at law in two respects – the adequacy of the Tribunal’s reasoning and in interfering with the exercise of discretion by the agency.

What decision of the agency is under review

The Appeal Panel found that the Tribunal at first instance had before it two decisions, an original decision and a supplementary decision of NSW Police [36]. Therefore, in reviewing the supplementary decision under s60(1)(d), the Tribunal did not offend the principle in Coulton v Holcombe [1986] HCA 33 that an appellant is ordinarily bound to the decisions raised at first instance and new arguments cannot be raised for the first time at appeal. Additionally, the Appeal Panel found at [40] that the Administrative Decisions Review Act 1997 (ADR Act) recognised the making of decisions on remittal (s65), and therefore NSW Police was entitled to proceed to remake the decision and rely upon grounds that had not been relied upon in its original decision: “The remade decision replaces the previous decision and becomes the reviewable decision for the purpose of the application for review: s65(3), s65(4).”

Preliminary and final decisions under the GIPA Act

The Appeal Panel distinguished between preliminary and final decisions under the GIPA Act. The Appeal Panel held that section 58provides six types of final and reviewable decisions that an agency can make in deciding an access application. Additionally, the GIPA Act provides at section 80 for eight other types of preliminary decisions(also reviewable), including disputes over transfers to another agency, fees, and deferrals of access [19].

Refuse to deal under section 60(1)(d)

The Appeal Panel found that in exercising its discretion to release the DVD, the Tribunal considered three matters to be relevant:

(a) The information that is the subject of the DVD is information concerning the Applicant’s son.

(b) The Applicant has already viewed the information.

(c) Release of the information would not release any new information.

The Appeal Panel confirmed that factors (b) and (c) were not relevant to the exercise of the discretion under section 60(1)(d) as they were merely preconditions [47] and that the Tribunal was required to weigh the systemic considerations that might justify the agency’s decision to refuse to deal with the application. In considering systemic factors that might justify the agency not continuing (emphasis added) to process the application, the Appeal Panel observed that s 60 operates to provide flexibility and support an efficient deployment of resources by the agency [43] and s60(1) works to benefit first-time or new applicants over repeat applicants.

The Appeal Panel found that NSW Police only made a ‘threshold’ decision in relying upon s60(1)(d) in its second decision. Accordingly, an examination of the merits of that determination was better suited to first instance proceedings. The Appeal Panel refused leave to consider the merits of that decision and remitted it with an observation that if NSW Police continued to rely upon s 60(1)(d), the Tribunal may need to give directions requiring NSW Police to make a new substantive (emphasis added) determination.

Legislative background

Section 60(1)(d) of the GIPA Act – an agency may refuse to deal with an access application (in whole or in part) if the information is or has been the subject of a subpoena or other order of the court to produce documents and is available to the applicant as a result.

Section 58 of the GIPA Act – how access applications are decided.

Section 65 of theADR Act – the Tribunal can remit the matter in an administrative review to the agency for reconsideration. If the reconsideration varies or replaces the initial decision, then the reconsidered decision is the decision before the Tribunal for review (section 65(3) and 65(4).

Factual background

The Applicant sought access to information: two COPS event records and a DVD. NSW Police decided, under section 58(1)(d), to release one record in full, the other in part, and refused to release the DVD. NSW Police noted section 60(1)(d), but did not seek to exercise the discretion.

The Applicant sought a review by the Information Commissioner. The Commissioner recommended on 5 November 2015 that NSW Police reconsider its decisions. The Appeal Panel at [12] observed that when the Applicant had applied to the Tribunal for review (18 November 2015), NSW Police had taken no action on the recommendation of the Information Commissioner, and took no further action in the months that followed. On 24 May 2016 the Tribunal remitted the matter for reconsideration to NSW Police under section 65 of the ADR Act.

NSW Police provided a supplementary decision on 31 May 2016 releasing the COPS record and refusing to deal with the request for the DVD under section 60(1)(d). Importantly, the original decision under s58(1)(d) and supplementary decision under s60(1)(d) provided irreconcilable reasoning as to the facts that ultimately informed both decisions.

The Appeal Panel accepted the NSW Police submissions that the DVD fell within the scope of s60(1)(d), but overruled the decision of the Tribunal and remitted it for re-determination.